San Filippo v. Furness, 2020 BCPC 164 (CanLII)
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2020 BCPC 164 |
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Date: |
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File No: |
124246 |
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Registry: |
Kelowna |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
BETWEEN:
TANIS SAN FILIPPO
CLAIMANT
AND:
JULIE FURNESS
DEFENDANT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE C. HEINRICHS
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T. San Filippo |
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Counsel for the Defendant: |
J. Gordon |
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Kelowna, B.C. |
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Dates of Hearing: |
July 20, 21, 22, 23, 2020 |
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Date of Judgment: |
August 24, 2020 |
[1] On Father’s Day weekend in June 2018, Tanis San Filippo and her partner, Logan Hnidy, went camping with some of Mr. Hnidy’s co-workers and the co-workers’ friends and family members. Ms. San Filippo was relatively new to the group. A physical fight occurred on the Sunday morning between the claimant, Tanis San Filippo, and the defendant, Julie Furness.
[2] Ms. San Filippo claims that Ms. Furness assaulted and battered her and that she sustained resulting ongoing physical and emotional injuries.
[3] Ms. Furness opposes all claims by Ms. San Filippo.
[4] In response, Ms. Furness says that Ms. San Filippo started the fight, and that Ms. Furness acted in self-defense, or alternatively that the fight was mutual, or alternatively that she was provoked by Ms. San Filippo at the time, as well as the day before, causing Ms. Furness to lose her power of self-control.
[5] For the reasons that follow, I am satisfied the claimant has proven on a balance of probability that the defendant did assault and batter the claimant and that the defendant’s actions were neither provoked nor by consent nor committed in self-defense. I am satisfied that the claimant has proven some of the damages claimed.
BACKGROUND
[6] The following facts are not in dispute and I find these to be the facts.
[7] Ms. San Filippo and Mr. Hnidy brought Ms. San Filippo’s teenage daughter and a companion friend, as well as their own five-year-old-daughter, on the camping trip.
[8] Mr. Hnidy’s friend and co-worker, Ryan Orge, was there with some friends, and his then 2-year-old son. Ryan Orge’s mother, Julie Furness, came to look after him. Ryan Orge’s father and employer, Steven Orge, and his current partner, Elizabeth Robinson, were camping, together with Steven Orge’s cousin and employee, Chad Blatchford, and his partner Tanya Schneider. They are all related and all work together.
[9] Although the main issue in this trial was the fight on Sunday morning, what happened on Friday and Saturday sets the background. Ms. San Filippo’s teenage daughter’s behaviour that weekend was, at the least, unpleasant and disruptive. At times, the daughter was loud, rude, swore, and made comments that caused division among the adults. She and her friend brought drugs to the campsite.
FRIDAY EVENING
[10] Ms. San Filippo’s teenage daughter was upset because a number of people, including Steven Orge, moved her tent to the bottom of the windy hill, but instead of packing up the contents, they picked it up and moved it. Inside, the contents fell together in a jumble. She was also upset because Steven Orge threw either her or her friend’s bong in the lake.
SATURDAY
[11] On Saturday, Ms. San Filippo’s daughter made statements about Steven Orge; the gist of her comments were that:
a) Steven Orge was in the bushes with Julie Furness; and
b) Steven Orge had watched her teenage friend relieving herself in the bushes.
[12] Rumours spread that the teenage daughter and her friend were intoxicated and had “molly” (referring to MDMA) in their water bottles. None of the witnesses saw the teens in possession of alcohol and none could say definitively who had identified that the girls’ water bottles contained MDMA. By late Saturday afternoon, Steven Orge and Ms. San Filippo became involved in a verbal argument, resulting in Ms. San Filippo and Mr. Hnidy quickly packing up the teenagers to take them home, returning later to re-join their 5-year-old daughter and the others for the balance of the weekend.
SUNDAY MORNING
[13] Ms. San Filippo went to different people’s campsites in search of a sentimental box belonging to her teenage daughter, which had gone missing on Saturday. Ms. San Filippo and Mr. Hnidy both testified that she was also looking for her sunglasses. After learning that Ryan Orge had the box, Ms. San Filippo attended at his campsite.
[14] Ryan Orge told Ms. San Filippo that the box was in the garbage, and in order to retrieve it, Ms. San Filippo dumped out the garbage. She found the box and returned to her campsite. Mr. Hnidy stayed at Ryan Orge’s campsite to help pick up the garbage.
[15] Steven Orge, who had been at his son’s campsite, returned to his own campsite and reported what he had seen to Ms. Furness, Ms. Robinson, Mr. Blatchford and Ms. Schneider.
[16] Ms. Furness immediately went to her son’s campsite, spoke with him, and then approached Ms. San Filippo at Ms. San Filippo’s campsite. After exchanging a few words, the fight ensued.
WHAT IS THE TORT OF ASSAULT AND BATTERY?
[17] An assault occurs when one person, by way of a gesture or action suggesting imminent contact, intentionally causes apprehension or fear of contact in another person.
[18] A battery occurs when one person does make intentional physical contact with that other person.
[19] In both assault and battery, the person who feared the contact or was contacted did not consent to the contact.
[20] Although the gesture or action is intentional, the result or outcome of the assault or battery does not have to be intended by the person committing the assault or battery. Proof of injury is not required to prove that a battery occurred, but the battery must be non-trivial, offensive, and a violation to the person who was battered.
[21] The person who committed the assault or battery or both may claim that she made the contact or threat of contact in self-defence, or that the contact was mutual.
THE ISSUES
[22] In this case, Ms. San Filippo must show on a balance of probability that:
1) Ms. Furness intended to make contact with her; i.e. it was not accidental;
2) Ms. San Filippo did not consent to the contact; and
3) Ms. San Filippo was offended or harmed, not necessarily physically, by the contact.
[23] Ms. Furness claims that if she assaulted and battered Ms. San Filippo, it was by consent; therefore, she needs to show on a balance of probability that Ms. San Filippo consented or that it was a mutual fight.
[24] Alternatively, Ms. Furness claims that if she assaulted and battered Ms. San Filippo, her actions were provoked and in self-defence, and therefore she must meet the legal test on a balance of probability. That test is summarized in Pacheco v. Degife, 2014 BCSC 1570 (CanLII) as follows:
[100] The onus of proving justification for a counter assault and proving that the force used was not excessive rests on the defendant. …
[101] See also Thomson v. Friedmann, 2008 BSCS 703, aff’d 2010 BCCA 277, where the court quoted Professor Fridman’s explanation of the defence at para. 17:
Self defence imports the idea that the defendant is under attack at the hands of the plaintiff, or reasonably believes that he will be subject to such an attack, even if the plaintiff has neither the intention nor the power to make such an attack. Even if the circumstances entitle the defendant to claim he was acting in self defence, he cannot escape liability unless he discharges the burden of proving that the amount of force he used was reasonable in all the circumstances. …
[25] Finally, if I find that Ms. Furness assaulted and battered Ms. San Filippo without a defence, I must determine what damages would flow from the assault and battery.
ANALYSIS OF THE EVIDENCE
[26] A number of witnesses testified about the events on the weekend, with variations in their evidence, particularly as between Ms. San Filippo and Ms. Furness. I will assess the credibility and reliability of the evidence and determine whom and what I believe on the balance of probability.
[27] The fight occurred on Sunday morning. Ms. San Filippo testified that:
• Ms. Furness walked up to her while she, Ms. San Filippo, and her 5-year-old daughter were brushing their teeth.
• Ms. Furness warned Ms. San Filippo that she was going to knock her out; Ms. San Filippo offered to sit at the campfire and talk like adults.
• Ms. Furness shoved Ms. San Filippo, knocking the cup and toothbrush out of Ms. San Filippo’s hand.
• When Ms. San Filippo leaned forward to pick up the toothbrush, Ms. Furness pushed her, sending Ms. San Filippo backwards onto the ground, hitting her head.
• When Ms. San Filippo tried to get up on her knees, Ms. Furness grabbed Ms. San Filippo’s hair and chest, pulling and pushing at the same time so that Ms. San Filippo could not stand up.
• They both fell to the ground. Ms. Furness then punched Ms. San Filippo on the head more than once, and pulled out some of her hair.
• Ms. San Filippo said the fight lasted between 30 – 90 seconds.
[28] Overall, I find that Ms. San Filippo is a credible witness. Her evidence is coherent and internally consistent and supported by corroborating evidence. More specifically, I find Ms. San Filippo credible for the following reasons:
a) Ms. Furness was motivated by the situation to approach Ms. San Filippo, whereas Ms. San Filippo was in the process of brushing her teeth with her daughter at her campsite;
b) I find it unlikely that Ms. San Filippo would start a fight in the presence of her 5-year-old daughter;
c) Mr. Hnidy described Ms. Furness as being angry, having made this conclusion from her pacing back and forth at Ryan’s campsite, her facial expression, and how she stormed over to Ms. San Filippo;
d) Mr. Hnidy testified that just after Ms. Furness left Ryan’s campsite to approach Ms. San Filippo, Ryan told Mr. Hnidy that he thought his mother was going to beat up Ms. San Filippo. Ryan Orge denied this, but I do not accept his evidence on this point, as I will address below. I find that Ryan Orge had determined that his mother was angry and anticipated what she would do, which corroborates Mr. Hnidy’s conclusion that Ms. Furness was angry. Ms. San Filippo was not angry at Ms. Furness;
e) Ms. San Filippo’s detailed chronology remained consistent. Her recollection of:
i. how surprised she was when Ms. Furness said “I’m going to knock you out” that she had to stop brushing and clear her mouth to respond; and
ii. her wonderment as to why she was picking up her toothbrush from the dirty ground;
are details that reinforce her credibility as to what happened on a step-by-step basis;
f) Ms. San Filippo maintained and was consistent in her testimony of the altercation, even under vigorous cross-examination;
g) Both Mr. Hnidy and Steven Orge confirmed Ms. San Filippo’s testimony, that she tends to avoid conflict, for example, when she walked away from the argument with Steven Orge on Saturday, and when she removed her teenage daughter and friend from the situation. Ryan Orge also acknowledged that Ms. San Filippo was trying to make things right following the upset caused by her daughter;
h) The photos Ms. San Filippo took following the incident show cuts, scratches and bruises on her arms, hand, and legs, as well as a bruise on her breast, consistent with Ms. San Filippo’s description of the physical altercation. I accept her explanation that she did not take photos of her face, as there were no bruises or cuts on her face. Ms. San Filippo did not allege that Ms. Furness made contact on her face, but rather that she punched her on the head and pulled her hair; and
i) The hospital emergency record indicates a diagnosis of “concussion and contusion” which corroborates Ms. San Filippo’s testimony that Ms. Furness pushed her backwards and she fell hitting her head on the ground.
[29] I accept the evidence of Ms. San Filippo with respect to the altercation.
[30] Mr. Hnidy’s testimony corroborated much of what Ms. San Filippo said about the fight:
• He watched Ms. Furness storm towards Ms. San Filippo.
• He observed the women talk briefly, then Ms. Furness pushed Ms. San Filippo, starting the fight. I accept that Mr. Hnidy was observing the situation because he had concluded that Ms. Furness was angry, he heard Ryan’s comments about his mother beating up Ms. San Filippo, and his 5-year-old daughter was present.
• When Mr. Hnidy arrived, he saw that Ms. Furness had Ms. San Filippo’s hair in her hand and was grabbing and ripping Ms. San Filippo’s shirt. Ms. Furness was on top of Ms. San Filippo and he told her to get off, which she then did.
[31] I find Mr. Hnidy’s evidence forthright, balanced and largely credible. He made comments that were not necessarily flattering or supportive to Ms. San Filippo or her daughter; for example, in his opinion the teenage daughter and possibly her friend were intoxicated. He also made statements that were contrary to Ryan Orge’s testimony, although he was clear that they were friends. He testified that both he and Ms. San Filippo approached Ryan Orge to ask about the location of the box. Mr. Hnidy readily admitted that he had apologized to Ryan Orge for Ms. San Filippo tossing the garbage out of the container, an admission that indicates he did not approve of Ms. San Filippo’s behaviour. Mr. Hnidy admitted that he had taken an advance from his then-employer, Steven Orge, and still has not fully repaid it. This might have cast him in a poor light, but he readily admitted it.
[32] Ms. Furness testified that:
• Steven Orge left their campsite Sunday morning and returned to tell her, Mr. Chadwick, Ms. Schneider and Ms. Robinson, that Ms. San Filippo was rude to Ryan and dumped his garbage all over the campsite to get her daughter’s drugs back. Ms. Furness put her coffee down and she says calmly went to her son’s campsite to see if everything was okay.
• Ryan Orge told her that Ms. San Filippo was looking for her daughter’s drugs and was rude and mad about not finding them and that Ms. San Filippo was angry and hostile.
• After checking in with her son Ryan, she calmly left her son Ryan’s campsite and went to see if Ms. San Filippo was all right. Ms. San Filippo was brushing her teeth at her campsite.
• Ms. San Filippo asked Ms. Furness for the return of the drugs that had been in the box and Ms. Furness told Ms. San Filippo they were in the fire. Ms. Furness testified that she knew Ryan had put the drugs in the fire, because the night the tent was moved, Ryan came by later and said he found a backpack with a box with drugs, and Ms. Furness told Ryan to throw it in the fire.
• Ms. Furness calmly explained to Ms. San Filippo the impact drugs can have on people and children, and the concern she had that her grandson might have died had he consumed some of the water with the MDMA that the teens had the previous day.
• In response, Ms. San Filippo threw the cup of toothpaste water in her face and pushed Ms. Furness with two hands on her shoulders. Ms. Furness then pushed her back with open hands.
• Ms. San Filippo then grabbed Ms. Furness again and for two seconds they both fell to the ground on their sides. Ms. Furness pulled Ms. San Filippo’s hair and Ms. San Filippo was pulling hers. She was not sure if they were holding each other’s arms. Later she testified that she was on her left side and only had use of her right arm.
• She did not push Ms. San Filippo. Because of a previous injury, she has limited range of motion with her right arm.
• They were on the ground for only two seconds before Mr. Hnidy and Ryan separated them. Mr. Hnidy and Ryan were 50 meters away.
• Ms. Furness got up and walked away; her palms were bloody from rocks on the ground.
[33] I do not find Ms. Furness to be a credible witness for the following reasons:
a) I do not believe Ms. Furness’ explanation that she went to see Ms. San Filippo to ask if she was all right and offer her kindness as a caring problem-solver. Ms. Furness testified about how upset, embarrassed and humiliated Ms. San Filippo must have been on Saturday as a result of her daughter’s behaviour, and the arguments between the adults, but at no prior time did Ms. Furness make efforts to show kindness towards Ms. San Filippo. Rather, Ms. Furness heard Steven Orge’s description of Ms. San Filippo’s incredulous behaviour at Ryan’s campsite, and without finishing her coffee, left her own campsite to see if Ryan was all right. I do not accept her evidence that she was calm. Ms. Robinson testified that Ms. Furness “took off” from their campsite when she heard what Ms. San Filippo had done with the garbage at Ryan’s campsite.
b) Ms. Furness was previously upset with Ms. San Filippo because of her teenage daughter’s behaviours on Saturday, including the following:
i. Ms. Furness believed that Ms. San Filippo’s teenage daughter was under the influence of alcohol and/or drugs. She testified that she could not say who specifically, but people made comments about the teen doing drugs, including having “molly” in her water bottle. When given an opportunity in her testimony to describe the teen’s state, Ms. Furness simply stated “it was apparent” that Ms. San Filippo’s teenage daughter was intoxicated and that lots of people were saying she should leave. The only evidence that described Ms. San Filippo’s teenage daughter’s behaviour is that the teen was argumentative and loud, screaming at Ms. San Filippo and Mr. Hnidy, and she called people names;
ii. Ms. Furness was upset that, as she believed, the teenagers had brought drugs into a family campsite, causing risk to the children;
iii. Ms. San Filippo’s teenage daughter alleged that Ms. Furness had been in the bushes with Steven Orge. I understand this was intended to disparage both Mr. Orge and Ms. Furness. Whether or not Ms. Furness and Steven Orge had been in the bushes, Ms. Furness had further reason to be upset with Ms. San Filippo’s teenage daughter; and
iv. Ms. San Filippo’s teenaged daughter alleged that Steven Orge watched her friend relieve herself in the bushes. No one disputes that the teenager said this. Whether or not it was true, Ms. Furness had another reason to be upset with the teen. This incident gave rise to an argument about whether or not Ms. San Filippo called Steven Orge a pedophile.
c) Ms. Furness testified she told Steven Orge that Ms. San Filippo told her the teenage daughter had just said that Steven was watching the friend in the bush, like a pedophile. Ms. Furness suggested that Ms. San Filippo talk to Steven Orge about it, yet Ms. Furness then testified that she herself walked up to Steven Orge and told him that Ms. San Filippo called him a pedophile. I note that this is what Ms. Furness reports was said by Ms. San Filippo; at no time did Ms. San Filippo actually confirm that she made that statement.
d) This testimony is corroborated by Steven Orge. He testified that Julie Furness approached him and informed him that Ms. San Filippo told her (Ms. Furness) he was a pedophile, based on what had just happened. Mr. Orge then approached Ms. San Filippo, and told her what Ms. Furness had just told him. Ms. San Filippo did not deny or confirm. He persisted in clarifying whether or not she had used the word “pedophile”. Others started gathering around and the argument was on. In her evidence, Ms. San Filippo did not say that she had called Mr. Orge a pedophile. She was trying to find an explanation, in Mr. Orge’s favour, for why the teen had reported that he was watching her friend in the bush. I find that the word “pedophile” originated with Ms. Furness in reporting to Mr. Orge what she says Ms. San Filippo told her, and not with Ms. San Filippo.
e) Ms. Furness testified that on Friday, after moving the teenagers’ tent, she instructed Ryan to burn the drugs he found in the box. Mr. Orge contradicted this evidence, testifying that he took the box with the drugs on Saturday as Mr. Hnidy and Ms. San Filippo were packing up the teenagers to return them home. He testified that he burned the drugs in his fire and threw the box in the trash Saturday evening. Mr. Orge did not say that his mother, Ms. Furness, instructed him to burn the drugs either on Friday or Saturday.
f) Ms. Furness testified that when she approached Ms. San Filippo on the Sunday morning, Ms. San Filippo asked Ms. Furness for the return of the drugs that had been in the box and Ms. Furness told Ms. San Filippo they were in the fire. Both the question and the answer are unlikely to have occurred. By that time, both Ryan Orge and Chad Blatchford had already informed Ms. San Filippo that the drugs were burned, consumed, or were no longer in their possession. It is unlikely that Ms. San Filippo would have asked Ms. Furness to return the drugs, when she already knew from Ryan Orge and Chad Blatchford that they no longer existed. In any event, I do not accept that Ms. San Filippo was looking for the drugs. I accept her evidence that she was opposed to the teens having drugs, in part because she did not want the teen to be a bad influence on the younger sister. I accept Ms. San Filippo’s evidence that she was looking for the box.
g) Ms. Furness testified that Ms. San Filippo started the fight by pushing her with two open hands, after Ms. Furness had explained to Ms. San Filippo the risks of drugs in the presence of children. I do not find that to be a realistic response, especially since Ms. San Filippo was clear about not wanting drugs around the children. Further, Ms. Furness could not explain what happened to the cup and toothbrush Ms. San Filippo had been holding. Only after cross-examination did Ms. Furness add that she did not knock the cup and toothbrush out of Ms. San Filippo’s hands. I find it less likely for Ms. San Filippo to have started the fight since she was holding her cup of water and toothbrush, and more likely that Ms. Furness pushed Ms. San Filippo, which resulted in Ms. San Filippo dropping the cup and toothbrush.
h) Ms. Furness demonstrated that she could only lift her right arm approximately as high as her ribcage, but not higher. However, Ryan Orge, while testifying, demonstrated that his mother could lift both arms to a 90-degree angle from her body, considerably higher than what Ms. Furness demonstrated. I find that Ms. Furness overemphasized the limitations with her right arm. I do not accept Ms. Furness’ evidence that Ms. San Filippo was pulling her hair when they were on the ground. Ms. San Filippo recalls being below Ms. Furness, which gave Ms. Furness access to Ms. San Filippo’s head and hair, even with the limited range of motion of Ms. Furness’ right arm, but not vice versa.
i) Ms. Furness estimated the fight lasted 2-3 seconds, or possibly 3-5 seconds maximum, considerably different than Ryan Orge’s time estimate of 2-3 minutes. I find that Ms. Furness has minimized the duration of the fight. I prefer the evidence of Ms. San Filippo, that the fight was approximately 1.5 minutes long, which accords with the events as related by Ms. San Filippo, and would allow the time required for Mr. Hnidy and Ryan Orge to reach the location of the fight.
[34] Ryan Orge testified that:
• Ms. San Filippo’s daughter was intoxicated, angry, aggressive, yelling, screaming, running around, and causing a general scene both on Friday night and Saturday. Other witnesses did not describe her to be “intoxicated” on Friday night.
• When Mr. Hnidy and Ms. San Filippo were packing up the teenagers to take them home late Saturday afternoon, Ryan Orge saw an open backpack beside the vehicle they were packing. Inside the backpack he saw an open box, and inside the box were small, clear plastic Ziploc bags with white powder. He remembered later that the box also contained marijuana and cigarettes. Ryan Orge admitted that he took the backpack with the box and he poured the contents of the box in the fire, then put the box in the garbage. He told his mother that he disposed of the “paraphernalia” for his son’s safety. He told the court that he was motivated to take the box with the bags of white powder and weed and cigarettes because he was not comfortable with a 13-year-old girl with substances.
• On Sunday morning, Ms. San Filippo approached him and asked for her daughter’s drugs back. He told her he burned the drugs in the fire and put the box in the garbage.
• While he was picking up the garbage with Mr. Hnidy, he saw the fight from the beginning. He saw Ms. San Filippo push his mother twice and that started the fight.
• The fight was about 2-3 minutes long and it took 30-45 seconds for him to run 50 meters to where the fight was.
[35] I do not accept Ryan Orge’s evidence that Ms. San Filippo asked him to return the drugs, or that she initiated the fight. Overall, I do not find much of Ryan Orge’s evidence to be credible for the following reasons:
a) Mr. Orge was camping with approximately four or five other friends; the care of his son was with his mother. Mr. Orge’s recollection of the teen’s behaviour was vague and likely based on the information of other people, not what he saw himself.
b) Mr. Orge’s explanation for why he took a backpack that did not belong to him that he says contained a box with small clear plastic bags with a white powdery substance that he believed were illegal drugs, does not make any sense. If he was uncomfortable with the drugs being at the campsite where his 2-year-old son was, he could have allowed the Hnidy/San Filippo party to continue packing the items in the truck when the teens were leaving. He believed the drugs belonged to the daughter and she was leaving, presumably with her box. I find it more likely that he saw cigarettes and marijuana in the box and took them for his own use. I find it unlikely that the marijuana and cigarettes were burned on the fire, with other campers in close proximity, as they would have smelled the contents being burned. I do not accept Mr. Orge’s testimony that there were clear plastic bags with white powdery substance in the box.
c) Ryan Orge did not have a clear memory of Sunday morning. He does not recall that his father, Steven Orge, had been to his campsite earlier on Sunday morning. He does not recall seeing the 5-year-old daughter with Ms. San Filippo before the fight started. He does not recall specifically who did what to whom, including whether or not his mother was holding Ms. San Filippo by the hair, or vice versa, or whether one was on top of the other; only that they were intertwined.
[36] I do accept Mr. Orge’s evidence that he threw the box in the garbage, where Ms. San Filippo and Mr. Hnidy found it Sunday morning.
[37] Steven Orge testified that:
• He had not thrown any of Ms. San Filippo’s teenage daughter’s belongings in the lake, except for a broken piece of plastic, which he later admitted was the teen’s bong. I find that he minimized his action, rather than being forthcoming about it.
• When Ms. San Filippo came to their campsite Sunday morning looking for the box, he heard Mr. Blatchford tell her that it was in the garbage and that they had smoked the smokes or the smokes were smoking and she could get the drugs from the police. This contradicts Ryan Orge’s evidence that he had poured the contents of the box in the fire on Saturday, but corroborates Ms. San Filippo’s evidence that she saw Mr. Blatchford take the box out of the vehicle before taking the teens home on Saturday evening.
• Steven Orge admitted that he wrote his “will-say” statement in preparation for the trial, a part of which was put to him as follows: “On the evening of June 16, a backpack belonging to Tanis’ daughter [omitted for publication] was discovered in her possession with … molly, marijuana, cocaine and cigarettes.” However, Steven Orge testified that he did not see a backpack at anytime, nor a bag of drugs or a box or backpack in the fire. He admitted that someone else had suggested to him that there was a bottle of molly. I find that Steven Orge’s will-say statement was based on comments he heard from others, not things that he saw or knew himself. I find this undermines his credibility.
[38] For the most part, I find that Mr. Orge wanted to support Ms. Furness’s case, minimize any behaviour that might put him in a poor light, and repeat the information of others when he had no personal knowledge of it. This makes him a less credible witness.
[39] I did not find the testimony of Ms. Robinson, Ms. Schneider and Mr. Blatchford to be useful in determining the events of the weekend or particularly Sunday morning. Ms. Robinson had been feeling poorly all weekend and did not have a clear recollection of events. Ms. Schneider admitted that she had just woken on Sunday and was wiping the sleep out of her eyes, impacting her perception of what happened or was said before the altercation. Mr. Blatchford “imagined” some of his testimony and could not remember details that should have come easily, such as the ages of his daughters. Further, I find that all of them still work together and associate with each other and most likely shared information about the weekend with each other. Ms. Schneider admitted that she and Ms. Furness wrote her “will-say” statement for trial together.
CONCLUSIONS FROM THE EVIDENCE REGARDING THE FIGHT
[40] I find that Ms. San Filippo’s teenage daughter had a box with her, containing cigarettes and marijuana, and that the box found its way into the possession of either Ryan Orge or Chad Blatchford. I do not accept the submission that Ms. San Filippo came in search of the drugs on Sunday morning, but rather that she was looking for the box. Ms. San Filippo and Mr. Hnidy located the box in the garbage container at Ryan Orge’s campsite, having dumped out the garbage to locate it.
[41] I find that Ms. Furness heard about Ms. San Filippo’s behaviour and she confronted Ms. San Filippo. The confrontation became physical, initiated by Ms. Furness pushing Ms. San Filippo twice, the second time knocking her to the ground backwards where she hit her head. I accept the evidence that while Ms. San Filippo was on the ground and Ms. Furness was standing over her, Ms. Furness grabbed Ms. San Filippo, ripping her shirt and injuring her breast, and that Ms. Furness hit Ms. San Filippo on the head, while Ms. San Filippo protected her face. I find that they both fell to the ground, and that Mr. Hnidy arrived first and Ryan Orge arrived second to stop the fight.
[42] I accept the evidence that Ms. San Filippo attended at Kelowna General Hospital and was diagnosed with a concussion and contusions, some of which were evidenced in photographs presented by Ms. San Filippo.
[43] I do not accept Ms. Furness’ evidence that Ms. San Filippo started the fight nor Ms. Furness’ submission that she was acting in self-defence. The evidence does not support this. Ms. San Filippo was concerned about her 5-year-old daughter’s presence, she tended to avoid conflict, and she was shocked at Ms. Furness’ statement that she was going to knock her out. On the other hand, Ms. Furness was angry at Ms. San Filippo for a number of reasons and stormed over to her campsite.
[44] I do not accept Ms. Furness’ submissions that this was a mutual fight. The evidence does not support this. I have accepted Ms. Filippo’s version of the altercation and at no time was Ms. San Filippo in a position to push or punch Ms. Furness, nor grab her hair. If Ms. San Filippo held Ms. Furness’ arms, it was to prevent Ms. Furness from continuing to batter her. Ms. San Filippo had no reason to fight with Ms. Furness.
[45] Ms. San Filippo has shown on a balance of probability that Ms. Furness was the aggressor, Ms. Furness acted intentionally and knew the nature of her actions, and that Ms. San Filippo did not consent to the actions of Ms. Furness. Ms. Furness is liable for the assault and battery.
DAMAGES
[46] Ms. San Filippo claims general damages of $7,500, aggravated damages of $5,000, and punitive damages of $7,500. She also seeks special damages for medical costs and loss of income.
[47] It is through damages that the torts of assault and battery are discouraged, with a goal of reducing violence in our society.
GENERAL DAMAGES
[48] General damages, or non-pecuniary damages, are awarded to compensate a claimant for their pain and suffering resulting from the battery. Proof of physical injury is not a requirement. A schedule or tariff setting out the amount of damages for pain and suffering based on the seriousness of the injuries does not exist because each person experiences pain and suffering differently. The determination of damages is a subjective matter, taking into consideration the following factors referred to in the case Stapley v. Hejslet, 2006 BCCA 34, at paragraph 46:
[46] The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146 (CanLII)] that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably be subsumed in the above list:
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).
[49] Ms. San Filippo is relatively young at 36 years of age and she will recover from the impact of the assault and battery. She attended the hospital the same day as a result of the pain and swelling in her right breast. I accept the hospital emergency record is accurate on its face. The record is timely and indicates a diagnosis that Ms. San Filippo had a concussion and contusion. In addition, the photos taken by Ms. San Filippo the same day show that she had some scrapes and scratches to her hands and knees.
[50] The injury of a concussion is serious, although I have no medical evidence to determine the duration of the impact of the concussion. Ms. San Filippo has recovered from the contusion, scrapes and scratches.
[51] I am satisfied that Ms. San Filippo experienced significant loss of dignity and hurt feelings as a result of the battery caused by Ms. Furness. The fight was fairly long in duration and occurred in public, causing embarrassment, and in the presence of her 5-year-old daughter, causing distress to Ms. San Filippo.
[52] Ms. San Filippo still suffers emotional harm from the incident, as over two years later, she continues to take counselling and seek therapies that will bring her relief.
[53] I am satisfied that the compensation for general damages arising from the assault and battery needs to be significant to address the pain and suffering experienced by Ms. San Filippo and I award the sum of $7,500.
AGGRAVATED DAMAGES
[54] In Glover v. Fell, 1999 CanLII 5905 (BCSC), Sigurdson J. explains the difference between aggravated damages and punitive damages, at paragraph 70:
… Aggravated damages are an augmentation of compensatory damages for such intangible elements as pain, anguish, grief, humiliation, wounded pride, damaged self-confidence, that are caused by the conduct of the defendant that reasonably ought to have been foreseen. This part of the damage award is for the aggravation of the injury by the defendants’ high-handed conduct.
[55] Ms. San Filippo testified herself about the impact of the concussion, stating that it has been long lasting, had significant impacts on her memory, personality, her ability to work, and has caused her to incur significant medical expenses.
[56] She described how the effects of the concussion have impacted her relationship with her partner Mr. Hnidy and her children. However, Ms. San Filippo has not provided expert medical evidence to show that the symptoms she is experiencing are caused by the concussion. Ms. San Filippo submits that she is spending considerable sums of money on various therapies to deal with symptoms, and that should be sufficient proof that the symptoms were caused by the concussion. She also referred to research she has conducted on the internet as to the possible lasting effects of a concussion.
[57] I cannot accept Ms. San Filippo’s opinion that the symptoms she is still experiencing resulted from the concussion.
[58] I cannot therefore determine that the concussion has impaired Ms. San Filippo’s family, marital and social relationships, physical and mental abilities, or lifestyle, to the degree she suggests.
[59] I decline to award aggravated damages. The award for general damages is intended to compensate Ms. San Filippo for the intangible elements she has experienced that are clearly caused by the assault and battery.
PUNITIVE DAMAGES
[60] Punitive damages are intended to denounce and condemn a defendant’s reprehensible conduct, as recently confirmed in the case Johal v. Mangat, 2020 BCSC 148.
[61] In Whiten v. Pilot Insurance Co., 2002 SCC 18, Mr. Justice Binnie set out some principles of punitive damages, establishing general objectives of retribution (in the sense of punishment), deterrence of the wrongdoer and others, and denunciation, and establishing that the amount of punitive damages must be proportionate and rationally related to these objectives.
[62] At paragraph 67, he quotes the BCCA from Robitaille v. Vancouver Hockey Club Ltd. (1981), 1981 CanLII 532 (BC CA), 124 D.L.R. (3rd) 228, at p. 250, writing that “punitive damages … ought to be available whenever ‘the conduct of the defendant [was] such as to merit condemnation by the [c]ourt.’” At paragraph 68, he quotes Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para.196: “punitive damages are … ‘the means by which the … judge expresses its outrage at the egregious conduct.’”
[63] Neither party has provided any similar case law to address the amount of punitive damages that would be proportionate to meet the objectives in this case.
[64] In assessing the punitive damages, I have considered the egregiousness of Ms. Furness’ actions. I have found that they were unprovoked and unreasonable in the circumstances. There was no requirement for Ms. Furness to come to her son’s defense. If Ms. Furness was upset about Ms. San Filippo or her teenage daughter, she could have raised her concerns in a reasonable way. Starting a physical fight with Ms. San Filippo was completely inappropriate.
[65] Ms. Furness is a mature woman at age 47. She works as a nurse, often with seniors, and has the responsibility for others’ care. In my view, it is even more incumbent that she manage her anger in an appropriate way.
[66] I accept that Ms. Furness did not plan her misconduct. However, she did not stop after the initial shove. The battery continued for over a minute. Ms. Furness would have known that her violent conduct was wrong.
[67] Punitive damages are intended to punish Ms. Furness for her behaviour and to deter others in society from behaving in a similar manner. Her conduct was over-the-top and must be condemned.
[68] I award punitive damages in the amount of $2,500, which I find meets the objectives established by the Supreme Court of Canada. It is not an excessive or disproportionate windfall for Ms. San Filippo. Ms. Furness is employed full time and although this is not an insignificant amount, it is manageable and should bring home the message to her, and others, that this kind of violent behaviour will have consequences.
MEDICAL COSTS
[69] Ms. San Filippo has failed to establish on a balance of probabilities that the medical costs she has incurred for various treatments are required as a result of the battery.
LOSS OF WAGES
[70] Ms. San Filippo filed income tax Notice of Assessments showing that she earned less than $10,000 in each of the years 2016, 2017, and 2018. Ms. San Filippo currently receives a disability income of $1,600 per month, or approximately $19,200 per year. In addition, she receives child support and child tax credits. She is earning more now than she was at the time of the incident. Ms. San Filippo has failed to establish that she has had a loss of income as a result of the battery.
SUMMARY OF DAMAGES
[71] General damages, $7,500; punitive damages, $2,500; total, $10,000
CONCLUSION
[72] The claimant is awarded from the defendant the damages of $10,000.00 plus $60.00 for the service fees, for a total of $10,060.00. In the event that either party has submissions with respect to Rule 10.1, she may contact the Judicial Case Manager to schedule time before me for that hearing.
_____________________________
The Honourable Judge C. Heinrichs
Provincial Court of British Columbia